State v. Godfrey

• Citation: 182 Neb. 451,155 N.W.2d 438
• Decision Date: 05 January 1968
• Docket Number: No. 36619,36619
• Parties: STATE of Nebraska, Appellee, v. Gerald Dean GODFREY, Appellant.
• Court: Nebraska Supreme Court

Page 438

155 N.W.2d 438

182 Neb. 451

STATE of Nebraska, Appellee, v. Gerald Dean GODFREY, Appellant.

No. 36619.

Supreme Court of Nebraska.

Jan. 5, 1968.

Syllabus by the Court

1. The fact that a defendant, as a part of the initial procedures at a police station, after full Miranda warnings, is asked whether he desires to make a statement at that time, and answers negatively, does not automatically invoke his right to counsel and render inadmissible any subsequent statement obtained in the absence of counsel. Such a factual circumstance, coupled with other facts present, does not prohibit or invalidate a later waiver voluntarily, knowingly, and intelligently made.

2. The constitutional right to trial by jury is a personal privilege which may be waived and the prosecution is without power to require a jury trial if the defendant wishes to waive it.

3. The court may reasonably require that a motion to waive a jury trial be made or filed within a reasonable time prior to trial as a condition to the consent of the court.

A. Q. Wolf, Public Defender, Bennett G. Hornstein, Asst. Public Defender, Omaha, for appellant.

Clarence A. H. Meyer, Atty. Gen., Harold Mosher, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.

McCOWN, Justice.

The defendant has appealed from a conviction and sentence for burglary. Two issues involving constitutional rights are presented. One involves an interpretation of Miranda rules and the other the waiver of the right to trial by jury.

In the early morning hours of October 20, 1966, a burglary was committed at a Safeway Store in Omaha. Some 80 or 90 cartons of cigarettes were taken. An eyewitness had been awakened by the sound of breaking glass and had observed 'two fellows' coming out of the broken glass door. Two police officers stopped an automobile in the vicinity and shortly after the time of the burglary. The two white male occupants were the defendant and a companion. They were taken to the scene of the burglary. When the police officers had completed their investigation of the burglary at the store, the defendant and his companion were taken to the central police station where sergeant Kaufhold and his partner interviewed the two suspects. This interview took place in the detective bureau between 6:05 and 6:15 a.m. In advising defendant of his Miranda rights, the officers followed a 'rights advisory form.' The defendant was asked if he was willing to give a statement at that time and he said: 'No.' He was then booked on suspicion of burglary and placed in a cell. Meanwhile, the police continued their investigation in the field and found the bulk of the stolen cigarettes.

At approximately 11 a.m., officers Sieborg and Wilson had the defendant brought from his cell to a fourth floor interrogation room of the police station. At this interrogation defendant was informed that the police had found the cigarettes. The defendant at this time was given all of the Miranda warnings pursuant to the 'rights advisory form,' and his responses were noted in writing by the police officers. He was advised that they were police officers; that he had a right to remain silent and not make any statements or answer any questions; that anything he might say could be and would be used against him in court; that he had a right to consult with a lawyer and have the lawyer with him during the questioning; and that if he could not afford a lawyer, the court would appoint one to represent him. He was asked if he understood each portion of the warning as it was given to him. He was then asked: 'Knowing your rights in this matter are you willing to make a statement to me now?' He answered: 'Yes.' He was then asked: 'Do you willingly waive and do without the services of an attorney at this time?' He responded: 'Yes.' Following this, a typewritten statement and confession was taken from the defendant. The defendant read the statement over and stated it was true, but refused to sign it as it was 'not with his thinking to sign it.' The total time required for the interrogation and statement was 40 to 50 minutes.

At the trial, a hearing was held out of the presence of the jury to determine the admissibility of the statement made. Following the hearing, the trial court specifically found that the statements made by the defendant at or about 11 a.m. in the police station on the morning of October 20, 1966, were voluntarily made and were made after compliance with the requirements of Miranda. The typewritten statement was thereafter offered and received in evidence over objection.

There is no contention that incomplete or inadequate warnings were given to the defendant. There is no contention that there were any promises or threats or coercion or physical abuse. There is no contention that the defendant was ill-treated, incarcerated for long periods, nor in any way mentally deficient or unaware of the circumstances. Neither is there any contention that he was denied access to parents, friends, or others, nor subjected to any extended periods of interrogation.

Boiled to its essence, the defendant's position is that when, shortly after 6 a.m. in the detective bureau, he answered 'No' to the question, 'Knowing your rights in this matter are you willing to make a statement to me now?', the negative answer to that specific question invoked his constitutional rights under Miranda, prevented any further in-custody interrogation of him by the police in the absence of a lawyer, and made inadmissible the subsequent statement obtained in the absence of counsel at 11 a.m.

Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974, has spawned reams of articles concerning its application and its peripheral boundaries. Fifth and Sixth Amendment issues, both made applicable to the states by virtue of the Fourteenth Amendment, are now interwoven in the problem of incustody interrogation and statements resulting from it. The plural but separate and integrated nature of the privilege against self-incrimination and the right to counsel is obvious throughout Miranda. The necessary constitutional underpinning rests on compulsion. How much of 'the compulsion inherent in custodial surroundings' remains, after the protective devices required by Miranda have been employed, is uncertain, particularly when applied as a rule of evidence.

The Supreme Court has not foreclosed the admission of all statements made in the atmosphere of the police station. It has said: 'There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.'

'If authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the person's Fifth Amendment privilege so long as they do not question...